A General Theory of Governance: Due Process and Lawmaking Power

Abstract

This replaces an unauthorized heavily cut upload which I must disclaim. A late draft, this may be somewhat closer to my intention than the published piece as well.This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the intrinsic sources of power and the individual rights that are power’s extrinsic limits. This Article argues, further, that in rights-based constitutional litigation, substantial scrutiny should become, and as a practical matter is, the general rule, and that certain economic rights should have the benefit of substantial scrutiny. Among the current and recent cases briefly discussed are Sebelius, the “Obamacare” case; Morrison, the Virginia Tech rape case; Kiobel, the Nigerian torture case; Kelo, the failed redevelopment case; Astrue, the in vitro child Social Security case, and Arizona v. U.S., the immigration case.